Whatever You Do, Do Not Get Hurt at Work in Michigan – A Summary of the Republican Changes in Michigan Which Clearly Favors the Companies and Insurance Companies

Wage Earning Capacity is Redefined.

Hypothetical wages are now included in “wages” therefore the law now includes wages that one is “capable” of earning. This is established by the insurance companies who use a handful of hired vocational experts who will always find transferable skills and jobs that you could be doing. This, making the same or more money than you were making at the job when injured. The injured worker must also look for work and make a “good faith job search effort” immediately upon being injured in many cases. If any doctor has restrictions on you, whether a one-time IME (Independent Medical Opinion) doctor, your treating doctor, or the work clinic doctor, you should be looking for work within those restrictions. The case law is now clear, if your employer doesn’t have light duty work for you, you must look for work with other employers, even while you are still employed by the employer where you were injured. If your a union employee, you must break your contract with your union, and seek work with other employers and nonunion companies to be entitled to workers compensation benefits. Obviously, the new changes signed into law by Gov. Snyder in 2011 were not completely thought through and or the injured workers interests were not considered.

The hypothetical wage earning capacity that is always found by a few “hired gun” vocational experts has turned out to be the random, unfounded process, that eliminates or knocks out workers compensation wage loss benefits, that all injured workers advocates were worried about.

Typical Example of a Workers Compensation Injury in Michigan: An Iron Worker makes $1000 per week to support himself, a wife and two children. He falls and breaks both of his heals requiring multiple surgeries. His workers compensation payment would be about 66% or $666.00 per week. A noticeable pay decrease for the family of four. As soon as the injured worker can walk, he needs to start looking for light duty work. The company has no light duty work so he must look for work with other companies and in violation of his union contract, which indicates that he must ONLY look for work through the union. In any event, after the insurance company pays the $666 per week, for about 6 months, the insurance company hires a vocational expert to state that the injured iron worker can do light duty work as a telemarketer, and a cashier with a sit-stand option making $10 per hour and/or $400 per week, and that he can also work as a construction estimator making $20 per hour and/or $800 per week. At this point the insurance company decides if they want to take a credit based on the hypothetical wage earning capacity of $400 per week or $800 per week. If they decide to take the $400 per week credit, based on the telemarketing job or the cashier job, they would then reduce the injured workers benefits to ($666 – $400 =) $266 per week. This makes it impossible for the family of four to live on. If the insurance company randomly decides to take the $800 credit, its $666 – $800 = $0 of continuing wage loss. Clearly, the family of four cannot survive on $0 per week. This all happens while the iron worker has many restrictions that prevent him from working as an iron worker. Everyone agrees that he canNOT work as an iron worker and the iron worker has been putting out applications for light duty work at the rate of 3 to 5 per week. While this is a “good faith job search” and full benefits should be paid, since the changes to the law in 2011, about 93% of the workers compensation trial and appellate decisions have indicated that the injured employee has reduced or no wage earning loss. Hence, 9 out of 10 times this iron workers wages are cut to $266 per week and or $0 per week. Both make surviving in the real world impossible.

A Connection Between Wage Loss and Disability is Required.

The company and insurance company can argue that you were fired for cause, that you have stopped working because you have taken yourself out of the work force for violating company policy. They can and will also argue this if you have a felony conviction or have not looked for work. Furthermore, if you have other medical issues or arthritis then will argue the disability if any, is not related to you work injury.

The Injured Worker Must Establish Medically Distinguishable Pathology.

A work injury under the Act is compensable if work causes, contributes to, or aggravates the condition. The Act now requires a change in pathology that is medically distinguishable from the pathology that existed prior to the injury, as opposed to the onset of pain or other symptoms. This medical standard is very difficult for Doctors to understand and testify to. It is impossible to show pathology that is medically distinguishable if you do not have serial MRI’s or X-rays. While the doctor can have his medical opinion, getting the doctor to stick to that testimony under cross examination by the insurance company attorney is very, very difficult. The doctors often get flustered under cross examination when they must admit that they don’t know exactly what the pathology looked like before the injury. If they don’t know what it looked like before the injury how can they say, within a reasonable degree of medical certainty. that it has pathologically changed and that it is medically distinguishable. It is very difficult under this standard to get a doctor to stick to his opinion regarding a change in pathology. It is nearly an impossible standard.

New Law Adds to the Definition of Mental Disability.

The mental disability must arise out of actual events “not unfounded perceptions thereof.” Additionally, the employee’s perception of actual events needs to be “reasonably grounded” in fact or reality. Obviously this is another hurdle to mental disabilities in Michigan workers compensation law.

Changes the “100-Week Rule.”

The protection of the hundred week rule was to ensure that when companies brought an injured employee back to light work that they would not use that time to discipline and terminate the employee. The law recognized the possible abuse and indicated that during the first 100 weeks of light duty, that if the employee was fired or terminated for any reason, that Michigan workers compensation benefits would be owed. However, under the Snyder/Republican changes you will get protection under the 100 week rule only if he or she loses his or her job through no fault of his or her own. This is another major protection of injured workers taken away. Now the issue of fault must be determined by the workers compensation magistrate.

Extends the Period When the Employer Controls Medical Treatment.

It was 10 days that you were forced to go to the company clinic and insurance IME doctors and Snyder and or the Republican congress changed it to 28 days. This is actually a very long time to not have a choice of doctors. Then even after 28 days you have the right to go to a doctor or your choice but the law does not require the insurance company to pay for it. They may approve your doctor but they aren’t required to. The insurance company can deny your treatment for good reason, no reason or even bad reason. We have no bad faith that ensures that insurance companies will act in “good faith,” and they often don’t.

The republican administration has also now passed an administrative rule that narcotic pain medications cannot continue for more than 3 months without your doctor filing out numerous forms and making him jump through hoops. The new rule is 3 months of narcotic pain medications, period, unless your doctor who already despises workers compensations medical pay scale, wants to fill out more forms for free. Its yet another step to make doctors not want to deal with anyone on Michigan workers compensation benefits. The administration is also currently pushing for “evidence based medicine,” in which your treating doctors medical recommendations will be irrelevant. The insurance company will look up your injury on a chart and the insurance company will tell you exactly what medical treatment you will get and for how long, based on a group of insurance companies doctors scales and charts.

Expands Credit for Unemployment Benefits and Qualifying Pensions.

Unemployment credits apply to any unemployment received even if charged to another employer.
Pensions are now easier to offset workers compensation payments. The big three has recently taken the position that they can offset SSD and pension payments and have reduced thousands of retired and work injured employees workers compensation payments. For years these retired and injured auto workers were relying on a certain amount of monthly benefits from work comp, SSd and their pension. Now the big three have reduced the payments and the case is in Federal Court.

Requires the Magistrate to Take Into Account the Affect of Any Internal Joint Replacement Surgery, Internal Implant, or Other Similar Medical Procedure When Determining Whether a Specific Loss has Occurred.

This language has taken joint replacement out of the equation for specific loss benefits, even if the joint replacement is due to a work injury.

Adjusts the Calculation of Interest.

From 10 percent per annum, calculated from the date each payment was due, to 6-month intervals at a rate of interest equal to 1 percent plus the average interest rate paid at auctions of 5-year U.S.
The intent of many provisions in the bill is to limit workers’ compensation liability for Michigan employers.